Citation Nr: 0614485
Decision Date: 05/17/06 Archive Date: 05/31/06
DOCKET NO. 03-30 399 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office and Insurance
Center in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
WITNESSES AT HEARING ON APPEAL
The veteran and a friend
ATTORNEY FOR THE BOARD
Jason A. Lyons, Associate Counsel
INTRODUCTION
The veteran had active military service from September 1966
to August 1969.
This case comes to the Board of Veterans' Appeals (Board)
from an April 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) and Insurance
Center in Philadelphia, Pennsylvania, which denied the
veteran's previously denied claim for service connection for
PTSD.
In February 2004, the veteran and a friend testified at a
hearing in Washington, DC, before the undersigned Veterans
Law Judge (VLJ) of the Board. A transcript of the proceeding
is on file. Then, in July 2004, the Board clarified that the
issue appealed was a petition to reopen a claim for service
connection for PTSD -- as a prior final denial of this claim
was already of record. The Board proceeded to reopen the
claim based on new and material evidence, see 38 C.F.R.
§ 3.156(a), and then remanded it to the RO (via the Appeals
Management Center (AMC) in Washington, DC) for further
development and consideration on the mertis. The AMC
completed the development requested and readjudicated the
claim on the merits (on a de novo basis), but continued to
deny the claim as noted in its November 2005 supplemental
statement of the case (SSOC). The AMC has since returned the
case to the Board for further appellate review.
FINDINGS OF FACT
1. The RO has provided the veteran with thorough and detailed
notice regarding the procedures under the Veterans Claims
Assistance Act (VCAA) for the evidentiary development of the
claim on appeal. Moreover, all relevant evidence necessary
for an equitable disposition of this matter has been
obtained.
2. The veteran did not have participation in combat with the
enemy.
3. The veteran's claimed in-service stressors have not been
independently corroborated through his service records or
other credible supporting evidence.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by military service.
38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§
3.1, 3.6, 3.102, 3.159, 3.303, 3.304 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106,
5107, 5126 (West 2002), became effective on November 9, 2000.
Implementing regulations were created, codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005).
VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. Pelegrini v. Principi, 18 Vet.
App. 112, 120-121 (2004) ("Pelegrini II"). See, too,
Charles v. Principi, 16 Vet. App. 370, 373-74 (2002) and
Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (both
also discussing the VCAA content requirements). This
"fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to all five elements of a
"service connection" claim. As previously defined by the
courts, those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability.
Upon receipt of an application for "service connection,"
therefore, VA is required to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.
Regarding the degree of disability element, Dingess/Hartman
holds that a claimant must, at a minimum, be notified that
should service connection be awarded, a schedular or
extraschedular disability rating will be determined by
applying relevant diagnostic codes in the rating schedule,
found in Title 38, Code of Federal Regulations, to provide a
disability rating from 0 percent to as much as 100 percent
(depending on the disability involved) based on the nature of
the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment. Moreover, consistent with
the statutory and regulatory history, that notice must
provide examples of the types of medical and lay evidence
that the claimant could submit (or ask VA to obtain) that are
relevant to establishing a disability - e.g., competent lay
statements describing symptoms, medical and hospitalization
records, medical statements, employer statements, job
application rejections, and any other evidence showing
exceptional circumstances relating to the disability.
As to the effective date element, Dingess/Hartman holds that
the claimant must be notified
that the effective date of an award of service
connection and any assigned disability rating(s)
will be determined based on when VA receives the
claim, when the evidence that establishes the basis
for a disability rating that reflects that level of
disability was submitted, or on the day after the
veteran's discharge from service if the claim that
is the basis for which service connection is
awarded is submitted within one year after
discharge.
Concerning the matter of timing, the Court states that the
notice on the disability rating and effective date elements
must be provided prior to an initial unfavorable decision by
the agency of original jurisdiction (AOJ, i.e., RO).
Such timely notice provides a meaningful opportunity for a
claimant to act responsively and to participate effectively
in the development of his or her claim.
When a content-complying - but late, notice is provided, a
question is raised as to whether the claimant was prejudiced
by the late notice, and the answer to that question depends
on the factual situation in a particular case. See, too,
Pelegrini II, 18 Vet. App. at 119-20 (where the Court also
held, among other things, that VCAA notice, as required by
38 U.S.C. § 5103(a), to the extent possible, must be
provided to a claimant before the initial unfavorable RO
decision on a claim for VA benefits). See, as well,
Mayfield v. Nicholson, No. 05-7157 (Fed. Cir. April 5,
2006).
While the decision in Dingess/Hartman talks about "service
connection" and involves downstream initial rating and
effective date claims, the impact of this decision is not
limited to Fenderson v. West, 12 Vet. App. 119 (1999) - type
situations involving the assignment of staged initial
disability ratings. Because the Court's decision is premised
on the five elements of a service connection claim, it is the
consensus opinion within the Department that the analysis
employed can be analogously applied to any matter that
involves any one of the five elements of a
"service connection" claim. For example, the notice for an
increased rating claim needs to include a discussion of the
effective date element, and the notice for a reopening claim
needs to discuss both the rating and effective date elements,
etc. Similarly, even for claims that "fall beyond"
the five basic elements of a service connection claim, such
as special monthly compensation, pension, etc., the effective
date to be assigned if the claim is granted is a matter that
needs to be addressed in the VCAA notice.
In furtherance of the legal requirement that the veteran
receive comprehensive notification of the procedures under
the VCAA which pertain to the evidentiary development of his
claim, he has been issued several VCAA notice letters. In
the initial May 2001 correspondence issued by the RO, he was
placed on notice as to the additional evidence not yet of
record that was necessary in order to substantiate his claim,
and this included a description of the type of information
that would be most helpful in attempting to corroborate an
alleged in-service stressor. That correspondence also
informed him as to the mutual obligation between VA and
himself to obtain evidence relevant to the disposition of his
claim. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87
(2002). He then received an October 2001 letter from the RO
which described in more detail the specific kind of
information he would need to provide to assist in attempts to
independently corroborate his alleged in-service stressor,
including as in this instance, for a claim for service
connection for PTSD based upon an allegation of an in-service
personal assault. Enclosed was a copy of a PTSD
questionnaire upon which he could provide additional details
of incidents alleged to have occurred during service.
Also, a July 2004 notice letter issued by the AMC (following
the Board's remand of the underlying claim for service
connection for PTSD), included substantially similar VCAA
notice information to that already presented. This letter
also included an explanation of the type of medical evidence
which would be useful in helping to establish his claim,
including physicians' statements, treatment records, and lay
statements from other individuals as to their observations of
his claimed medical condition.
Additional relevant notice documents include the September
2003 statement of the case (SOC), and November 2005 and
January 2006 SSOCs. The September 2003 SOC in particular
included citation to 38 C.F.R. § 3.304(f)(3), the applicable
VA regulation which describes those alternative sources of
evidence, i.e., other than service records, which an
individual may provide in support of a claim for service
connection for PTSD, where the alleged stressor is that of a
personal assault during service.
The forgoing documents included sufficient information to
satisfy the first three elements of what constitutes
satisfactory VCAA notice under Pelegrini II. See, too, §
3.159(b)(1). That said, however, there is still no
indication of the inclusion of the specific language of the
"fourth element" mentioned above. Nonetheless, as
discussed below, the July 2004 correspondence contained
nearly identical language that met the intended purpose of
this element.
In a precedent opinion, VA's General Counsel addressed the
issue of the "fourth element" of the VCAA notice as
outlined by the Court in Pelegrini v. Principi, 17 Vet. App.
412 (2004) (Pelegrini I). See VAOPGCPREC 1-04 (Feb. 24,
2004). The "fourth element" language in Pelegrini I is
substantially identical to that of Pelegrini II, as
mentioned, requiring VA under 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b)(1) to request the claimant provide any
evidence in his or her possession that pertains to the
claim. Id. The General Counsel's opinion held that this
language was obiter dictum and not binding on VA. See
VAOPGCPREC 1-04 (Feb. 24, 2004); see also Pelegrini II, 18
Vet. App. 112, 130 (2004) (Ivers, J., dissenting). In
addition, the General Counsel's opinion stated VA may make a
determination as to whether the absence of such a
generalized request, as outlined under § 3.159(b)(1), is
harmful or prejudicial to the claimant. For example, where
the claimant is asked to provide any evidence that would
substantiate his or her claim, a more generalized request in
many cases would be superfluous. Id. The Board is bound by
the precedent opinions of VA's General Counsel, as the chief
legal officer for the Department. 38 U.S.C.A. § 7104(c)
(West 2002).
Here, although the July 2004 letter did not contain the
precise language specified in 38 C.F.R. § 3.159(b)(1), the
Board finds that the veteran was otherwise fully notified of
the need to give VA any evidence pertaining to his claim.
That correspondence specifically requested that he provide
the AMC with any evidence or information he may have
pertaining to his claim. So a more generalized request with
the precise language outlined in § 3.159(b)(1) would be
redundant. The absence of such a request is unlikely to
prejudice him, and thus, the Board finds this to be harmless
error. VAOPGCPREC 1-04 (Feb. 24, 2004); see also Mayfield
v. Nicholson, 19 Vet. App. 103, 128 (2004), rev'd on other
grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006).
Moreover, a more recent letter that the AMC has sent to the
veteran, dated in April 2006, included an in-depth
explanation of the evidence that was required in order to
establish both the disability rating and effective date
elements of the claim on appeal, consistent with the legal
requirements set forth in Dingess/Hartman. See 2006 WL
519755, at *12 ("Other statutory and regulatory provisions
are in place to ensure that a claimant receives assistance
throughout the appeals process. ...To hold that section
5103(a) continues to apply after a disability rating or an
effective date has been determined would essentially render
sections 7105(d) [SOC provisions] and 5103A [duty to assist
provisions] and their implementing regulations insignificant
and superfluous, thus disturbing the statutory scheme.")
Note also that the question of whether adequate notice was
provided as to these additional elements of a claim for
service connection, as discussed in the Dingess/Hartman
holding, would not be determinative in the instant appeal.
This is because the preponderance of the evidence is against
his claim for service connection for PTSD on the merits --
thus, any questions as to the appropriate disability rating
or effective date to be assigned are rendered moot.
Also, as mentioned above, in addition to the criteria as to
adequate content of the VCAA notice provided, there is the
consideration that the relevant notice letters must have been
issued in a timely manner. With regard to the timing of the
VCAA notice sent to him, the notice letters sent in May and
October 2001 were each provided in advance of the April 2002
rating decision on appeal, representing the initial
adjudication of his previously denied claim for service
connection for PTSD. So these letters may be considered
timely under the legal definition set forth under Pelegrini
II. As for the subsequent letters dated in July 2004 and
April 2006, these were issued subsequent to the April 2002
decision, and thus would not be considered timely under the
above criteria. See also 38 U.S.C.A. § 5103(a); 38
C.F.R. § 3.159(b)(1).
However, the timing of the latter two VCAA letters did not
have any detrimental effect upon the adjudication of the
veteran's claim. Rather, following the issuance of the July
2004 correspondence, the veteran had ample opportunity to
respond with supporting evidence and/or argument prior to
the RO's issuance of the November 2005 SSOC continuing
the denial of his claim. In response, he has provided in
September 2004 a complete copy of the RO's PTSD
questionnaire, and a subsequent personal statement
identifying additional outstanding treatment records at
Murfreesboro VAMC, which the AMC has since obtained from that
medical facility. Bear in mind also that the July 2004 Board
remand of the veteran's claim also clearly identified the
essential role of the VCAA's duty to notify and assist him
with respect to the development of his claim on appeal,
including the opportunity for him to submit any further
relevant evidence he wanted considered. For these reasons,
the Board finds that regardless of the timing of the
subsequent VCAA notice letter, the veteran has been afforded
"a meaningful opportunity to participate effectively in the
processing of his claim by VA." See Mayfield v. Nicholson,
19 Vet. App. 103, 128, rev'd on other grounds, No. 05-7157
(Fed. Cir. Apr. 5, 2006).
Moreover, the RO has taken appropriate action to comply with
the duty to assist the veteran with the development of his
claim. In this respect, the RO has obtained his service
medical records (SMRs), service personnel records, and VA
outpatient and hospitalization records from several VA
medical facilities, and his clinical records from various
private treatment providers. He has personally submitted an
October 2002 letter from a private physician, and various
personal statements, including responses on two instances to
PTSD questionnaires that the RO had issued to him. The
veteran has also provided testimony during a February 2004
hearing before the undersigned VLJ. 38 C.F.R. § 20.704.
In sum, the record reflects that the facts pertinent to the
claim have been properly developed and that no further
development is required to comply with the provisions of the
VCAA or the implementing regulations. That is to say,
"the record has been fully developed," and it is
"difficult to discern what additional guidance VA could
[provide] to the appellant regarding what further evidence he
should submit to substantiate his claim." Conway v.
Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the
Board will address the merits of the claim.
Governing Law, Regulations and Legal Criteria
Service connection is granted for disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2005).
Service connection for PTSD, in particular, requires medical
evidence establishing a diagnosis of the condition in
accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV), credible
supporting evidence that the claimed in-service stressors
actually occurred, and a link, established by medical
evidence, between the current symptomatology and the claimed
in-service stressors. 38 C.F.R. § 3.304(f); see also
Cohen v. Brown, 10 Vet. App. 128 (1997).
The evidence necessary to establish the occurrence of a
recognizable stressor during service -- to support a
diagnosis of PTSD -- will vary depending upon whether the
veteran engaged in "combat with the enemy," as established
by recognized military combat citations or other official
records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66
(1993); Cohen v. Brown, 10 Vet. App. 128 (1997). If VA
determines the veteran engaged in combat with the enemy and
his alleged stressor is combat-related, then his lay
testimony or statement is accepted as conclusive evidence of
the stressor's occurrence and no further development or
corroborative evidence is required -- provided that such
testimony is found to be "satisfactory," i.e., credible,
and "consistent with the circumstances, conditions,
or hardships of service." See 38 U.S.C.A. § 1154(b);
38 C.F.R. § 3.304(d); Zarycki v. Brown, 6 Vet. App. 91, 98
(1993).
If, however, VA determines either that the veteran did not
engage in combat with the enemy or that she did engage in
combat, but that the alleged stressor is not combat related,
then her lay testimony, in and of itself, is insufficient to
establish the occurrence of the alleged stressor. Instead,
the record must contain credible supporting information from
another independent source that corroborates her testimony or
statements, such as service records. See Cohen, 10 Vet.
App. at 146-47. See also Moreau v. Brown, 9 Vet. App.
389, 394-95 (1996). The available sources for corroboration
of a claimed stressor are not necessarily limited to service
records (as previously required prior to the adoption of 38
C.F.R. § 3.304(f)), but may also include other sources
of evidence. See Cohen, 10 Vet. App. at 143, citing to M21-
1, Part VI, para 7.46(f) (Sept. 21, 1992); M21-1, Subch. XII,
para 50.45(d) (1989).
Under 38 C.F.R. § 3.304(f)(3), if a PTSD claim is based on
in-service personal assault, evidence from sources other
than the veteran's service records may corroborate the
veteran's account of the stressor incident. Examples of
such evidence include, but are not limited to: records from
law enforcement authorities, rape crisis centers, mental
health counseling centers, hospitals, or physicians;
pregnancy tests or tests for sexually transmitted diseases;
and statements from family members, roommates, fellow
service members, or clergy. Evidence of behavior changes
following the claimed assault is one type of relevant
evidence that may be found in these sources. Examples of
behavior changes that may constitute credible evidence of
the stressor include, but are not limited to: a request for
a transfer to another military duty assignment;
deterioration in work performance; substance abuse; episodes
of depression, panic attacks, or anxiety without an
identifiable cause; or unexplained economic or social
behavior changes. See 67 Fed Reg. 10,330-10,332 (March 7,
2002) (later codified at 38 C.F.R. § 3.304(f)(3)).
When there is a current diagnosis of PTSD, the sufficiency of
the claimed in-service stressor is presumed. Cohen, 10 Vet.
App. at 144. Nevertheless, credible evidence that the
claimed in-service stressor actually occurred is still
required. 38 C.F.R. § 3.304(f). Credible supporting
evidence of the actual occurrence of an in-service stressor
cannot consist solely of after-the-fact medical nexus
evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996).
But corroboration does not require "that there be
corroboration of every detail including the appellant's
personal participation in the identifying process." Suozzi
v. Brown, 10 Vet. App. 307, 311 (1997).
The finding as to whether a veteran has submitted sufficient
corroborative evidence of claimed in-service stressors is a
factual determination. See Pentecost v. Principi, 16
Vet. App. 124 (2002). And in both Pentecost and Suozzi, it
was held that specific evidence that a veteran was actually
with his unit at the time of an attack is not required to
verify that attack as a PTSD stressor. In Suozzi, 10 Vet.
App. at 310-11, the U. S. Court of Appeals for Veterans
Claims (Court) determined that evidence that the veteran's
company received heavy casualties during an attack consisting
of copies of radio logs of that incident, was sufficient to
reopen his claim for service connection for PTSD, even
without specific evidence of the veteran's presence with the
company during that particular incident. Also, Pentecost,
16 Vet. App. at 128-29 held that the Board had interpreted
the corroboration requirement too narrowly by requiring the
veteran to demonstrate his actual proximity to and
participation in rocket and mortar attacks. The Court
indicated in this respect that although the veteran's unit
records did not specifically show that he was present during
the alleged rocket attacks, "the fact that he was stationed
with a unit that was present while such attacks occurred
would strongly suggest that he was, in fact, exposed to the
attacks." Id.
In determining whether service connection is warranted, VA
is responsible for considering both the positive and
negative evidence. If the evidence, as a whole,
is supportive or is in relative equipoise (i.e., about
evenly balanced), then the veteran prevails. Conversely, if
the preponderance of the evidence is negative, then service
connection must be denied. See 38 C.F.R. § 3.102; Gilbert
v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet
App. 518, 519 (1996).
The record reflects that in the instant case, there are
several VA and private treatment providers who have rendered
a diagnosis of PTSD -- including, most recently, a physician
at the Murfreesboro VAMC in December 2005, and one or more
psychiatrists previously -- and thus there is competent
evidence in support of this first requirement for service
connection, and the determinative issue for consideration
then is whether this current medical diagnosis of PTSD is in
fact causally linked to the veteran's military service. In
order to establish this casual association with service, it
must be shown, initially, that at least one of the
in-service stressors that have been alleged actually
occurred, and once this is established, the remaining issue
is whether the confirmed stressor or stressors provide the
basis for the diagnosis of PTSD. See 38 C.F.R. § 3.304(f)
(2005).
In determining what will be necessary as sufficient
corroborative information for confirmation of the alleged
stressful experiences in this case (which, again, is the
preliminary issue for consideration in confirming whether
PTSD is associated with service), the Board notes initially
that the veteran has not alleged and the record also does not
appear to indicate participation in combat during service.
In particular, his Form DD-214 while providing confirmation
of his one-year period of service in Vietnam, does not list
of any of the commendations or awards that are considered to
indicate conclusive evidence of involvement in combat during
service. See VA Adjudication Procedure Manual (M21-1), at
Part VI, Change 112, para 11.37(b)(1) (March 10, 2004). See
also VAOGCPREC 12-99 (Oct. 18, 1999). Hence, it is necessary
that the events claimed to have occurred therein are
substantiated by sources other than his lay testimony on its
own. Cohen v. Brown, 10 Vet. App. 128, 146-47 (1997). As
mentioned, while SMRs, personnel records and other service
records generally provide essential information for purposes
of attempting to independently corroborate a stressor, this
inquiry is not limited to service records -- and in cases
such as the present, in which the veteran has provided an
allegation of a personal assault, there are several sources
of information in addition to service records that may be
considered for purposes of stressor corroboration, as
described under the provisions of 38 C.F.R. § 3.304(f)(3).
The veteran has claimed as an in-service stressful incident
underlying his claim for service connection for PTSD, an
alleged sexual assault, which he has stated occurred while he
was in Vietnam between June 1967 and June 1968, and his
military duty assignment was with the 327th Signal Corp, 36th
Signal Battalion. He has explained that he had been
invited to the going away party for an officer stationed
there and became intoxicated at that event. When he awoke,
he was the only individual left in the room along with that
officer, and he was sexually assaulted. According to the
veteran, this individual then left the unit the following
day. Another in-service stressor which has been alleged is
that during a temporary duty assignment while stationed
in Vietnam as the driver for a Company Commander, he drove
through areas where a military conflict had taken place and
observed the bodies of several individuals who had been
killed.
Considering the objective evidence that pertains to stressor
verification, and reviewing first the veteran's service
records, these sources of information in and of themselves do
not tend to provide substantiation of either of the above
events. In regard to the alleged sexual assault, the
veteran has indicated that he did not report this incident
during the time period in which he served, and this would
help to explain the absence of any reference to the claimed
incident in his official military records. Here, the
veteran's service personnel records do not show complaints of
an assault. There is no general indication from these
records also of a pattern of behavior that was consistent
with the occurrence of the incident described, as
demonstrated by any occupational related problems or
complaints after the fact such as diminished job performance
overall, or apparent harassment from any individual with
knowledge of the incident claimed. His personnel records
from during his period of Vietnam service show the receipt of
a letter of commendation in February 1968 along with his
entire unit, and in June 1968 he received the Drivers Badge
with "W" Device for a temporary duty assignment as a
military vehicle driver. In a November 1968 military
occupational specialty (MOS) evaluation report that pertained
to the veteran's assignment as a microwave radio repairman,
which he had held for most of the time spent in Vietnam, he
received some low scores as to job performance at that time -
- however, this was more than three months after his return
from Vietnam, and the report was completed by an evaluating
officer at a base in the continental U.S. Since the veteran
has identified a one-year general timeframe as to the
occurrence of the alleged incident, there is also no
possibility of establishing that this evaluation report was
provided in proximity to time of the incident. His personnel
file further shows that he subsequently received a promotion
in October 1968 to a specialist five level, and another duty
commendation in March 1969. While there is a record of a
one-month time period of unauthorized leave without absence
(AWOL), from March 9, 1969 to April 2, 1969, for which he
later received some extra duty and had to forfeit a portion
of his pay for a two-week period, there is nothing to suggest
that this had any correlation with the alleged assault,
taking into consideration that it occurred more than eight
months after his departure from service in Vietnam. Also,
the veteran did not request mental health evaluation or seek
counseling either with respect to the alleged incident or any
other symptoms of a psychiatric nature while in service, as
shown both by personnel records and his SMRs.
The veteran's second claimed stressor of having observed
several individuals who had been killed during his
occupational duty assignment as a military vehicle driver
also has not been directly confirmed through service records.
The veteran's receipt of the Driver's Badge with "W" Device
is evidence of his involvement in this specific duty
assignment, however, it does not assist in substantiating the
occurrence of the events he has claimed. Notwithstanding
also that the occurrence of specific incidents in the course
of the history of a military unit may frequently be verified
through an RO request for research of available unit history
reports, the veteran has not presented allegations that are
of sufficient specificity that they would be verifiable
through utilization of such historical information.
Those additional sources of evidence other than service
records also do not substantially assist with the procedures
for stressor verification in this instance. In regard to
the alleged sexual assault, there is no particular evidence
of behavior changes, either in service (and thus
contemporaneous with the events alleged to have occurred), or
within the first few years of service discharge, which would
help to show post-hoc the occurrence of incident claimed.
The initial medical evidence of record that would conceivably
show any unusual behavioral patterns (relevant for
consideration under 38 C.F.R. § 3.304(f)), consists of the
report of his June 1985 VA psychiatric examination, which
shows a continuous employment history since service and no
apparent mental health treatment until in proximity to the
examination date itself. The examiner diagnosed dysthymic
disorder and undiagnosed organic brain dysfunction, and
expressed the finding that there did not appear to be a
connection between these problems and military service.
Also, the record does not include any lay statements provided
by third-party individuals, such as those individuals who
knew him during or shortly following service, that would tend
to substantiate either alleged in-service stressful
experience -- this source of evidence based upon the
circumstances of the particular case, may provide the
requisite stressor corroboration through confirmation of
details of the alleged event.
The remaining evidence that pertains to the issue of
verification of those events in-service claimed to have
led to the onset of PTSD, is that of reports from VA
treatment providers who have expressed a viewpoint as to
etiology of this diagnosed condition. During a period of VA
hospitalization in May 2001, for instance, it was noted that
the veteran reported a history of a sexual assault incident
in service; the diagnosis was of PTSD, secondary to sexual
abuse. Then in December 2005, a physician provided a
clinical impression of PTSD that had occurred in conjunction
with an emotional trauma involving a sexual assault, which
the veteran had previously reported to treatment providers.
While these findings are useful for establishing a current
disability in and of themselves, they are nonetheless not
determinative on the issue of etiology since they are based
solely on the unverified history of the veteran as to events
from during service. The finding of a medical provider as to
the occurrence of a claimed stressor entirely on the basis of
the claimant's reported history, does not provide credible
evidence that such an event occurred as described for a
stressor that is noncombat-related -- rather, there must
still be additional evidence from an independent source to
show corroboration of the stressor (which is itself a factual
determination, but generally does not represent a medical
question that can be resolved completely through a
physician's opinion). See Moreau v. Brown, 9 Vet. App. 389,
395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). So
the medical opinions of record that relate the veteran's
diagnosed psychiatric condition to incidents described from
his service, are not probative evidence of the occurrence of
the underlying events.
Additionally, there is no indication at present that any
further development of the record would offer a reasonable
possibility of obtaining evidence which might otherwise
provide corroboration of either of the alleged in-service
stressors. The RO (and more recently, the AMC) has
undertaken significant measures to inform the veteran as to
the kind of information that would be most helpful to
attempting to substantiate the events claimed, including
sending him notice letters explaining the information that
was necessary, and enclosing on two instances copies of a
PTSD questionnaire with requests included for specific
details. These copies of the PTSD questionnaire which were
sent to him included an explanation as to the types of
evidence that would be useful in establishing a claim for
PTSD based upon an allegation of a sexual assault. With
respect to the second alleged stressor of the veteran's
experience and observations as a military vehicle driver, the
veteran also has not provided specific details such as
location, dates and names of any individuals involved that
would support any further RO efforts at independent
corroboration. See Wood, 1 Vet. App. at 193. Thus, even if
a conclusive diagnosis of PTSD were established, the record
does not provide an objective basis upon which to determine
that this condition is medically linked to one or more events
from during service.
Accordingly, in the absence of credible supporting evidence
that substantiates claimed in-service stressor, the claim for
service connection for PTSD must be denied. Inasmuch as the
preponderance of the evidence is against the claim,
the benefit-of-the-doubt doctrine is not applicable. 38
C.F.R. § 4.3; see also Alemany v. Brown, 9 Vet. App. 518,
519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
The claim for service connection for PTSD is denied.
____________________________________________
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs